Bombay High Court
Jaysing D. Tamboli vs Municipal Corporation Of Greater ... on 21 September, 2017
Bench: Rajesh G. Ketkar
1
WP.681-02GR.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
Writ Petition NO. 681 OF 2002
Municipal Corporation of Greater Mumbai
& Ors. ...Petitioners
Versus
Mumbai Mahanagarpalika Karyalayeen
Karmachari Sanghatana and others. ...Respondents
WITH
WRIT PETITION NO. 8973 OF 2005
WITH
WRIT PETITION NO. 5942 OF 2006
WITH
WRIT PETITION NO.406 OF 2015
WITH
WRIT PETITION NO.11863 OF 2015
WITH
WRIT PETITION NO.8434 OF 2014
WITH
WRIT PETITION NO.8063 OF 2005
WITH
WRIT PETITION NO.11441 OF 2014
WITH
WRIT PETITION NO.7370 OF 2008
....
Mr.S.S. Pakale, Advocate for Municipal Corporation of Greater
Mumbai.
Ms. Vidula S. Patil, learned Counsel for the Union / workman.
....
CORAM : R. G. KETKAR, J.
RESERVED ON : 20th JULY, 2017
PRONOUNCED ON : 21st SEPTEMBER, 2017
1 / 36
::: Uploaded on - 26/09/2017 ::: Downloaded on - 27/09/2017 00:59:13 :::
2
WP.681-02GR.doc
J U D G M E N T:
1. Heard Mr.S.S. Pakale, learned Counsel for Municipal
Corporation of Greater Mumbai (for short, 'Corporation') and
Ms.Vidula S. Patil, learned Counsel for the Union / workman, at
length.
2. W.P. No.681/2002 is instituted by (1) the Corporation,
(2) V. Ranganathan or his successor, Municipal Commissioner, (3) Ajit
Kumar Jain or his successor, the Additional Municipal Commissioner
(City), (4) Dinesh D. Jadhav or his successor, Deputy Municipal
Commissioner (Zone-I), (5) Rajendra Wale, the then Ward Officer and
presently Ward Officer (M.C.) and (6) Superintendent of Licence against
(1) Mumbai Mahanagarpalika Karyalayeen Karmachari Sanghatana (for
short, 'Sanghatana'), (2) Laxman G. Madane, (3) Prem J. Vyas, (4)
Sharad D. Bande, (5) Arun J. Wavadankar, (6) Satish L. Mhatre, (7)
Vinayak T. Jadhav, (8) Jalinder S. Kadam, and (9) Navnit K.More under
Article 227 of the Constitution of India challenging the judgment
and order dated 7.4.2001 passed by the learned Member,
Industrial Court, Mumbai (for short, 'Tribunal') in Complaint
(U.L.P.) No.580/2000. By that order, the Tribunal allowed the
2 / 36
WP.681-02GR.doc
complaint instituted by the Sanghatana and eight others filed
under Section 28 read with Item 9 of Schedule IV of the
Maharashtra Recognition of Trade Unions and Prevention of
Unfair Labour Practices Act, 1971 (for short, 'Act') and declared
that the petitioners have engaged in unfair labour practices under
Item 9 of Schedule IV of the Act and directed them to cease and
desist from engaging in such unfair labour practice. The
petitioners were directed to withdraw the order of punishment of
withholding two increments permanently inflicted on the
respondents/complainants. The petitioners were further directed
to release further amount of increments with arrears from the
date from which increments were due to complainants No.2 to 9.
3. W.P. No.8973/2005 is instituted by (1) the Corporation,
(2) K.C. Shrivastav or his successor, Municipal Commissioner, and (3)
Ajitkumar Jain or his successor, the Additional Municipal Commissioner
(City) against (1) Sanghatana and (2) Vasanti Parab under Articles
226 and 227 of the Constitution of India challenging the
judgment and order dated 4.7.2005 passed by the Tribunal. By
that order, the Tribunal allowed the complaint filed by the
complainants under Section 28 read with Item 9 of Schedule IV of
3 / 36
WP.681-02GR.doc
the Act and declared that the petitioners have engaged in unfair
labour practice under Item 9 of Schedule IV of the Act and
directed them to cease and desist from continuing such unfair
labour practice. The petitioners were directed to withdraw the
punishment dated 12.6.2001 inflicting fine of Rs.1,000/- on
respondent No.2/complainant No.2 Vasanti Parab and refund the
same to her.
4. W.P. No.5942/2006 is instituted by the Corporation
against Shri Prakash Alinje under Articles 226 and 227 of the
Constitution of India challenging the judgment and order dated
2.5.2006 passed by the Tribunal in Review Application (U.L.P.)
No.31/2004. By that order, the Tribunal allowed Review Petition
filed by the respondent Prakash Alinje and set aside the order
dated 16.8.2003 passed in complaint (U.L.P.) No.1187/2000. That
complaint was instituted by the respondent under Section 28
read with Item 9 of Schedule IV of the Act challenging the
punishment order dated 2.5.2000 withholding of next increment
of two years on permanent basis. By order dated 16.8.2003, the
Tribunal dismissed the complaint. The respondent filed Review
Petition which was allowed on 2.5.2006.
4 / 36
WP.681-02GR.doc
5. W.P. No.406/2015 is instituted by (1) the Corporation,
(2) Johny Joseph or his successor, Municipal Commissioner, and (3)
Rajendra Kumar Vale, Assistant Commissioner 'A' Ward against
respondent Govind Kanoba Gosavi under Articles 226 and 227 of the
Constitution of India challenging the judgment and order dated
4.10.2014 passed by the Tribunal in Complaint (U.L.P.)
No.245/2006. By that order, the Tribunal allowed the complaint
filed by the respondent under Section 28 read with Item 9 of
Schedule IV of the Act challenging the suspension order dated
31.3.2006 suspending him w.e.f. 4.4.2006 as also the order dated
11.10.2006 treating the period of suspension from 4.4.2006 to
11.10.2006 as uncondoned and imposition of fine of Rs.1000/-.
By the impugned order, the Tribunal allowed the complaint and
declared that the petitioners have engaged and are engaging in
unfair labour practice under Item 9 of Schedule IV of the Act. The
Tribunal set aside the order of punishment dated 11.10.2006
treating the period of suspension from 4.4.2006 to 11.10.2006 as
uncondoned period and fine of Rs.1000/- was imposed. The
Tribunal directed that the period of suspension be treated as a
period spent on duty for all purposes and all consequential
benefits.
5 / 36
WP.681-02GR.doc
6. W.P. No.11863/2015 is instituted by (1) the Corporation,
(2) Madhav sangle or his successor, the Additional Municipal
Commissioner (E.S.) and (3) Florens Vaz, Chief Engineer (S.O.) against
the respondent Appa Dagdu Shirgire under Articles 226 and 227 of
the Constitution of India challenging the judgment and order
dated 11.12.2014 passed by the Tribunal in complaint (U.L.P.)
No.295/2009. By that order, the Tribunal allowed the complaint
filed by the respondent under Section 28 read with Items 5 and 9
of Schedule IV of the Act challenging the suspension order dated
24.6.2008 suspending the complainant w.e.f. 25.6.2008 to
24.5.2010. The Tribunal declared that the petitioners have
engaged and are engaging in unfair labour practices under Items
5 and 9 of Schedule IV of the Act and directed them to cease and
desist from engaging into unfair labour practices under Items 5
and 9 of Schedule IV of the Act. The Tribunal revoked the
suspension order dated 24.4.2008 and declared that the period of
suspension during 25.6.2008 to 24.5.2008 be treated as period
spent on duty by the complainant for all purposes and
consequential benefits. The Tribunal set aside the finding of the
Enquiry Officer as also punishment order dated 4.11.2010
withholding the complainant's next increment of one year with
6 / 36
WP.681-02GR.doc
permanent effect.
7. W.P. No.8434/2014 is instituted by (1) the Corporation,
(2) Jony Joseph or his successor, Municipal Commissioner, and (3) R.M.
Kathuria, Executive Health Officer against the respondent Laxmi
Shivajirao Kawle under Articles 226 and 227 of the Constitution of
India challenging the judgment and order dated 28.7.2010 passed
by learned Presiding Officer, 7th Labour Court, Mumbai (for short,
'Labour Court') in Complaint (U.L.P.) No.378/2006. By that order,
the Labour Court allowed the complaint filed by the respondent
under Section 28 read with Items 1 (b), (d), (e) (f) and (g) of
Schedule IV of the Act challenging the termination order dated
15.1.2003. The Labour Court allowed the complaint and declared
that the petitioners have engaged and are engaging in unfair
labour practices under Items 1(b), (d), (g) of Schedule IV of the
Act and directed them to cease and desist from engaging into
unfair labour practices. The petitioners are directed to reinstate
the complainant with continuity of service and 25% backwages
w.e.f. 15.6.2003. The Corporation has also challenged the
judgment and order dated 19.10.2012 passed by the Tribunal in
Revision [U.L.P.] No.189/2010. By that order, the Tribunal allowed
7 / 36
WP.681-02GR.doc
Revision Application and modified the Labour Court's order. The
Tribunal confirmed that order to the extent of "it is declared that
the respondents are engaged and engaging in unfair labour
practice under Item 1(b), (d) and (g) of Schedule IV of the Act,
1971" and "the respondents are directed to reinstate the
complainant with continuity of service". The Tribunal however
quashed and set aside the direction to the respondents to pay
25% of the back-wages w.e.f. 15.1.2003. The Tribunal further
directed the respondents to pay to the original complainant 50%
of back-wages w.e.f. 15.1.2003 till the date of order dated
28.7.2010 or till the date of her reinstatement whichever is earlier
respectively.
8. W.P. No.8063/2005 is instituted by Jaysing D. Tamboli
against the Corporation under Articles 226 and 227 of the
Constitution of India challenging the judgment and award dated
17.8.2014 made by the Labour Court. By that order, the Labour
Court partly allowed the Reference and directed the Corporation
to appoint the second party as fresh candidate/ recruitee. The
workman is aggrieved as he not given full backwages and
continuity of service from 16.7.1998 and he is ordered to be
appointed as a fresh candidate/recruitee.
8 / 36
WP.681-02GR.doc
9. W.P. No.11441/2014 is instituted by (1) Ashok Prabhakar
Nachankar and (2) Ramesh Jethalal Chauhan against the Corporation
under Articles 226 and 227 of the Constitution of India
challenging the orders dated 3.5.2012 and 31.7.2012 passed by
the Tribunal in Complaint (U.L.P.) No.53/2009. By order dated
3.5.2012, the Tribunal held that the enquiry conducted against
the petitioners was fair and proper and that the findings are not
perverse. By order dated 31.7.2012, the Tribunal modified the
punishment imposed by the Corporation of stoppage of two
increments with permanent effect to stoppage of one increment
with permanent effect.
10. W.P. No.7370/2008 is instituted by Sunil Kashinath
Yadav against (1) the Corporation, (2) K.C. Shrivastav or his successor,
Municipal Commissioner, (3) Vidyadhar Kanade or his successor,
Additional Municipal Commissioner (City), (4) S.R. Dange or his
successor, the Joint Municipal Commissioner (G.A.) and (5) A.D.
Jhandwal, Chief Fire Officer under Articles 226 and 227 of the
Constitution of India challenging the judgment and order dated
4.2.2008 passed by the Tribunal in Revision Application (U.L.P.)
No.260/2006. By that order, the Tribunal allowed the Revision
9 / 36
WP.681-02GR.doc
Application filed by the Corporation and set aside the order dated
31.10.2006 passed by the Labour Court in Complaint (U.L.P.)
No.343/2002 and dismissed the complaint. The Labour Court
had allowed the complaint filed by the petitioner under Section 28
read with Items 1(b), (c), (d), (f) and (g) of Schedule IV of the Act
and declared that the respondents have engaged in unfair labour
practices under Items 1(b), (c), (d), (f) and (g) of Schedule IV of
the Act. The respondents were directed to withdraw the order of
termination dated 3.5.2002 and order of reinstatement with
continuity of service and full back-wages as also directed to pay
wages for the period of suspension as per Rules.
11. W.P. No.681/2002 was heard on 15.6.2017. At the
request of learned Counsel for the Corporation, the petition was
fixed for final hearing in the week commencing from 27.6.2017.
On 27.6.2017, at the request of learned Counsel for the
Corporation, the matter was fixed for final hearing in the week
commencing from 10.7.2017 along with W.P. Nos.8973/2005,
5942/2006, 406/2015, 11863/2015, 8434/2014, 8063/2005,
11441/2014, 7370/2008 as these Petitions raise following
common questions of law.
10 / 36
WP.681-02GR.doc
1. Whether the provisions of Industrial Employment
(Standing Orders) Act, 1946 (for short, 'S.O. Act') prevail
over the Mumbai Municipal Corporation Act, 1888 (for
short, 'Corporation Act') ?
2. Whether Mutual Standing Orders (for short, 'M.S.O.')
prevail over the Municipal Service Rules and
Regulations and the Manual of Departmental
Enquiries ?
12. The matter was heard from time to time and was
ultimately heard on 20.7.2017. In support of the petitions
instituted by the Corporation, Mr.Pakale submitted that the
impugned orders passed by the trial Court exhibit non-
application of mind. The impugned orders are totally illegal and
unconstitutional as the trial Court has totally over-looked the
important fact that the workman was appointed under the
Service Rules framed by the Corporation. The services of the
workman are governed by said Rules. Said Rules were never
challenged by the workman before any competent Court. Said
Rules are still in force. Without prejudice to these submissions,
he submitted that the workman neither pleaded nor proved that
the provisions of the Service Rules were prejudicial to his interest
and that those provisions cannot be made applicable to him. In
11 / 36
WP.681-02GR.doc
fact he participated in the enquiry without any reservation or any
objection to the decision of the Corporation initiating
departmental enquiry against him. It is, therefore, not open to
him to contend that the charge-sheet and the enquiry was not
conducted in accordance with the Standing Orders.
13. Mr. Pakale submitted that the provisions of M.S.Os. are
not applicable to the Corporation. He submitted that without
prejudice to this submission even if it is assumed that the
provisions of S.O. Act are applicable, the workman has not stated
as to how and which provisions of S.O. are violated. Similarly the
punishment provided for major misconduct in the M.S.Os. are
more severe than the punishment awarded by the Corporation. In
view thereof it cannot be said that the Corporation has committed
any wrong. Thus, the case made out by the workman is baseless
and without any foundation whatsoever. He submitted that the
trial Court ought to have framed another issue as to whether the
punishment awarded to the workman was inconsistent with the
provisions of the M.S.Os. particularly in the light of the allegations
and reply by the Corporation. The trial Court did not apply its
mind to the pleadings and also did not properly raise the issues
while deciding the case in haphazard manner which had resulted
12 / 36
WP.681-02GR.doc
into miscarriage of justice.
14. Mr. Pakale further submitted that the departments of
the Corporation do not fall within the definition of Section 2(e) of
the S.O. Act read with Section 2 of the Payment of Wages Act,
1936. He submitted that the Corporation is incorporated under
Section 5 of the Corporation Act. It is not an Industrial
Establishment as defined under the S.O. Act. It is possible that
some of the work undertaken in some of the departments and
sections of the Corporation may fall within the definition of an
"Industrial Establishment" as defined under the S.O. Act.
However, this is a mixed question of law and fact which can be
decided on the basis of evidence on record. The Corporation Act
is a Special Act whereas the S.O. Act is a General Act. The
provisions of a Special Act, namely, the Corporation Act, will,
therefore, supersede and/or override the provisions of a General
Act, namely, S.O. Act. The onus of proving inconsistency between
the Central Act and the State Act (albeit, one General and the
other Special) lies on the party placing reliance upon the Central
Act, namely, S.O. Act. No such stand was taken by the workman
before the trial Court. The inconsistency must exist on facts and
not on mere possibilities. He submitted that the trial Court ought
13 / 36
WP.681-02GR.doc
to have dismissed the case on this short count alone.
15. He further submitted that the Rules and Regulations
framed under the Corporation Act, though are in the form of
subordinate legislation, have statutory force and effect. Under the
provisions of the Corporation Act and the Rules framed
thereunder, employees acquire a status and get the right to hold
the office. He submitted that the decision of the learned Single
Judge of this Court (Coram: Dr.D.Y. Chandrachud, J. as his
Lordship then was) in Sitaram Walunj Walunj vs. Municipal
Corporation of Greeater Mumbai passed on 15.4.2008 in W.P.
No.8711/2007, is per incuriam as clause 32 of M.S.Os. in
Schedule-I was not brought to the notice of the learned Single
Judge. Section 13-B of the S.O. Act lays down that the S.O. Act
shall not apply to certain industrial establishments set out
therein. The list of Service Rules set out under Section 13-B is
merely illustrative and not exhaustive. In other words, the
Municipal Rules framed under the Corporation Act which are on
the same line with the Rules set out in Section 13-B and,
therefore, the S.O. Act will not apply to the corporation.
16. Mr. Pakale submitted that generally the employments
14 / 36
WP.681-02GR.doc
can broadly be described in the following three categories/laws:
(I) Relationship of master-servant, purely governed by
contractual employments under the Industrial law;
(II) Employments with either the Central or State
Government or with the local self government;
(III) Employments governed under the Rules framed by the
statutory bodies as per the relevant statute.
17. He submitted that in the present case, the second
category of employment has to be considered. He submitted that
once such an appointment is made, the rights and obligations of
the parties are governed by the statute under which their
appointments were made and not by contractual law. The
principles applicable to a master-servant relationship (but
unregulated by any statute) will not apply to those employees
employed by local self-government. In the present case, the
workman no where pleaded that the department in which he is
employed is an 'industrial establishment'. Till date, no Court has
held and/or recorded any such finding that the said department
is an 'industrial establishment'. In the absence of any such
finding, it would not be proper to hold that the provisions of the
S.O. Act are applicable to the Corporation.
18. He submitted that in the present case, once an
15 / 36
WP.681-02GR.doc
employee is appointed, his rights and obligations are not governed
by contractual principles but by the Corporation Act. The
relationship is governed by the special statute, namely, the
Corporation Act and not S.O. Act. Employees of the Corporation
are also entitled to protection under Articles 14, 15 and 16 of the
Constitution of India. The municipal employees have certain rights
and privileges and suffer from certain disabilities which may be
disregarded at common law which ordinarily governs the ordinary
master-servant relationship. The legal position of a municipal
employee is more of a 'status' rather than a 'contractual'
appointment. The hallmark of a status is its attachment to a
legal relationship of rights and duties imposed upon by the public
law rather than a mutual agreement between the parties.
19. He submitted that in the case of Sitaram Walunj (supra),
the learned Single Judge did not decide whether the Corporation
or any of its departments or sections is an 'Industrial
Establishment'. After recording concession, the learned Single
Judge proceeded to observe that the S.O. Act is a Special Act and
the Corporation Act is a General Act. The learned Single Judge
did not comparatively examine the provisions of these two Acts.
The learned Single Judge relied upon the decision of Apex Court
16 / 36
WP.681-02GR.doc
in the case of U.P.S.E. Board vs. Hari Shankar Jain, 1978 Lab.I.C.
1657 and held that the S.O. Act is a Special Act and consequently
held that the Corporation Act is a General Act. Before holding so,
the learned Single Judge ought to have considered the provisions
of both the Statutes and after examining the same ought to have
recorded a finding in that regard. No such exercise has been
undertaken. He, therefore, submitted that said decision cannot be
considered as an authority on the 'industrial establishment'.
20. In addition, Mr. Pakale reiterated the submissions that
were made in W.P. 5077/2012 with companion writ petitions
decided on 4.3.2015 by this Court. He submitted that aggrieved by
this decision, the Corporation preferred Special Leave Petitions
before the Apex Court. The Apex Court granted leave. Civil
Appeals were ultimately disposed of on 22.3.2017 keeping the
question of law open. In support of his submission, he relied
upon following decisions:
i. More Jeevan Yashwant and others vs. MCGM, W.P.
No.957/2013 along with companion writ petitions decided
on 6.1.2017 by this Court (Coram:S.C. Dharmadhikari &
B.P. Colabawalla, JJ.) and in particular paragraphs-36,
51 and 52.
17 / 36
WP.681-02GR.doc
ii. Secretary, ONGC Ltd vs. V.U. Warrier, (2005) 5 SCC 245 and in
particular paragraph-8 thereof;
iii. Sukhdeo Singh and others vs. Bhagatram Sardar Singh
Raghuvanshi and another, AIR 1975 SC 1331.
21. Mr. Pakale submitted that the petitions instituted by
the Corporation deserve to be allowed and the petitions instituted
by the workmen/Sanghatana deserve to be dismissed.
22. On the other hand, Ms. Patil appearing for the
Sanghatana/workman supported the orders passed in their
favour. She submitted that the petitions instituted by
Sanghatana/workman deserve to be allowed and the petitions
instituted by the Corporation deserve to be dismissed as the
questions of law raised in these petitions are time and again
decided by this Court. In short, she submitted that the issues
raised in these petitions are no longer res integra. She relied
upon following decisions:
I. Sitaram Walunj (supra);
II. Decision in Municipal Corporation of Greater Mumbai and
another vs. Dr. Shivajirao T. Kawale in W.P. No.7708/2010
decided on 17.1.2011 by this Court (Coram: Smt. Nishita
Mhatre, J.).
III. Decision in M.C.G.M. vs. Mr. Madhusudan S. Kanth in W.P.
18 / 36
WP.681-02GR.doc
No.9385/2010 decided on 13.12.2010 by this Court
(Coram: Smt. Nishita Mhatre, J.).
IV. Decision in the Municipal Corporation of Greater Mumbai
and others vs. Smt. Nilima Sunil Nadkarni in W.P.
No.5077/2012 with companion writ petitions decided on
4.3.2015 by me.
V. The Municipal Corporation of Greater Bombay and another
vs. Laxman Saidoo Timmanapyati and others, 1991 I CLR
653 (Bombay High Court)
VI. Pyarelal vs. The Municipal Council, Ramtek and another,
1992 I CLR 327 (Bombay High Court).
23. She further submitted that as far as W.P.
Nos.8973/2005 and 5942/2006 are concerned, the workmen
therein have retired, the penalty of payment of fine of Rs.1000/-
was inflicted on respondent No.2 Vasanti Parab. As far as W.P.
No.5942/2006 is concerned, the Corporation had inflicted
penalty of stoppage of one increment. The respondent Prakash
Alinje retired from the service of the Corporation. Even on this
count, no case is made out for interfering with the orders
impugned in these petitions.
24. I have considered the rival submissions advanced by
learned Counsel appearing for the parties. I have also perused
19 / 36
WP.681-02GR.doc
the material on record. I have already extracted the common
questions of law which arise in all these petitions, namely,
whether the provisions of S.O. Act prevail over the Corporation
and whether M.S.Os. prevail over the Municipal Service Rules
and Regulations and the Manual of Departmental Enquiries.
These issues were dealt by me in M.C.G.M. vs. Nilima Nadkarni
(supra). This view is supported by the decisions referred in
paragraph-22. The view taken by me is consistently taken by this
Court. For the reasons recorded therein, I do not find any good
reason for taking the different view than the one taken by me in
M.C.G.M. vs. Nilima Nadkarni (supra). As noted earlier, in W.P.
No.8973/2005 punishment of fine Rs.1,000/- was inflicted on
respondent No.2 Vasanti Parab on 12.6.2001. She had retired
from the services. In view thereof, no case is made out for
granting any relief in W.P. No.8973/2005. Rule is discharged with
no order as to costs. As far as W.P. No.5942/2006 is concerned,
the Corporation had inflicted the penalty on 2.5.2000 of
withholding of next increment of two years on permanent basis.
Initially by order dated 16.8.2003, the Tribunal had dismissed the
complaint. Review Petition filed by the respondent was allowed on
2.5.2006. Respondent Prakash Alinje has already retired from
20 / 36
WP.681-02GR.doc
the services of the Corporation. In view thereof also no case is
made out for granting any relief in W.P. No.5942/2006 instituted
by the Corporation. Rule is discharged with no order as to costs.
25. Mr. Pakale relied upon paragraphs-36, 51 and 52 of
W.P. No.957/2013 and other companion writ petitions decided on
6.1.2017. A perusal of that decision shows that the ex-municipal
employees had instituted the Petitions inter alia contending that
in or about 1989 the Corporation decided to allot residential
accommodation in its possession to its employees. The
petitioners claimed that they were allotted respective premises on
permanent tenancy / ownership basis. The petitioners, therefore,
claimed writ of mandamus directing the Corporation not to apply
the circular dated 7.10.2010 and release their retiremental
benefits / dues with effect from the date of their retirement with
interest @ 18% from that date till payment. The petitioners also
prayed for direction against the Corporation not to evict them
from their respective tenements. I fail to understand how this
decision is applicable for deciding the questions raised in these
petitions. The judgment relied upon by Mr. Pakale, therefore,
does not advance the case of the Corporation.
21 / 36
WP.681-02GR.doc
26. Mr. Pakale relied upon the decision in ONGC v. V.U.
Warrier (supra) and in particular paragraph-8 thereof. That
decision laid down that the Regulations framed under Section 32
of the Oil and Natural Gas Commission Act, 1959 are statutory in
nature and they are enforceable in a Court of law. Relying upon
this paragraph-8, Mr. Pakale submitted that even the Municipal
Service Rules and Regulations are statutory in nature. In the
case of M.C.G.M. vs. Nilima Nadkarni (supra), it is held that in
case of inconsistency between M.S.Os and Municipal Service
Rules and Regulations, M.S.Os. will prevail over the Municipal
Service Rules and Regulations. In view thereof, said decision also
does not advance the case of the Corporation.
27. Lastly, Mr. Pakale relied upon the decision of Sukhdev
Singh (supra). In that case also the Apex Court held that Rules
and Regulations framed by ONGC, LIC and Industrial Finance
Corporation have force of law. In my opinion, this decision does
not advance the case of the Corporation for the reasons already
recorded.
28. In the light of the above discussion, the question of law
are answered as under :
22 / 36
WP.681-02GR.doc
1. The provisions of S.O. Act prevail over Corporation Act.
2. M.S.Os. prevail over Municipal Service Rules and
Regulations and the Manual of Departmental Enquiries.
29. As noted earlier Civil Appeals preferred against the
decision dated 4.3.2015 passed by this Court in W.P.
No.5077/2012 and other companion petitions, were disposed of
by Apex Court on 22.3.2017 by keeping the question of law open.
30. Civil Appeals No.8426/2015, 14144/2015, 3390/2016,
SLP (C) No.27134/2016 and Civil Appeal No.3278/2016 were
disposed of by passing following order:
" Heard learned Counsel for the parties.
Delay condoned.
Since the respondent(s) employees have been
retired, therefore, we do not find any good reason
to interfere in the impugned order. The matters
are, therefore, dismissed. However, question of law
is kept open.
Obviously, appellants herein are at liberty to raise
the question of law in any other case."
. Civil Appeal No.8358/2016 was disposed of as under:
" Heard learned counsel for the appellant.
Considering the nature of punishment, we do not
find any reason to interfere with the impugned
order passed by the High Court. The Civil Appeal
stands dismissed accordingly. However, question of
23 / 36
WP.681-02GR.doc
law is kept open."
31. Having answered the common questions of law, now I
will take up each petition filed by the Corporation and by the
Sanghatana/workman. W.P. No.681/2002 challenges the
judgment and order dated 7.4.2001 passed by the Tribunal in
Complaint (U.L.P.) No.580/2000. By that order, the Tribunal
allowed the complaint instituted by the Sanghatana and eight
others filed under Section 28 read with Item 9 of Schedule IV of
the Act and declared that the petitioners have engaged in unfair
labour practices under Item 9 of Schedule IV of the Act and
directed them to cease and desist from engaging in such unfair
labour practice. The petitioners were directed to withdraw the
order of punishment of withholding two increments permanently
inflicted on the complainants. The petitioners were further
directed to release further amount of increments with arrears
from the date from which increments were due to complainants
No.2 to 9.
32. A perusal of the impugned order shows that in
paragraph-17, the Tribunal observed that on 3.7.1999 and
5.7.1999, the complainant remained absent and punishment of
24 / 36
WP.681-02GR.doc
withholding increment was awarded. The Tribunal held that the
service conditions of the employees of the Corporation are
governed by the M.S.Os and not by any certified standing orders.
The provisions of the M.S.Os will prevail over the Rules framed by
the Corporation in case of service conditions of the employees.
The Tribunal further held that withholding of two increments
permanently is a major penalty and such punishment cannot be
imposed without issuing charge-sheet and holding enquiry and
also without giving any opportunity to the concerned employee.
The Tribunal further held that the punishment of withholding
two increments permanently does not come under minor
punishment or major punishment in the M.O.S. and thus the
punishment awarded by the Corporation is bad in law and void
ab-initio. I do not find that the Tribunal committed any error. In
view thereof, Rule is discharged with no order as to costs.
33. W.P. No.406/2015 challenges the judgment and order
dated 4.10.2014 passed by the Tribunal in Complaint (U.L.P.)
No.245/2006. By that order, the Tribunal allowed the complaint
filed by the respondent under Section 28 read with Item 9 of
Schedule IV of the Act challenging the suspension order dated
25 / 36
WP.681-02GR.doc
31.3.2006 suspending him w.e.f. 4.4.2006 as also the order dated
11.10.2006 treating the period of suspension from 4.4.2006 to
11.10.2006 as uncondoned and imposition of fine of Rs.1000/-.
By the impugned order, the Tribunal allowed the complaint and
declared that the petitioners have engaged and are engaging in
unfair labour practice under Item 9 of Schedule IV of the Act. The
Tribunal set aside the order of punishment dated 11.10.2006
treating the period of suspension from 4.4.2006 to 11.10.2006 as
uncondoned period and fine of Rs.1000/- was imposed. The
Tribunal directed that the period of suspension be treated as a
period spent on duty for all purposes and all consequential
benefits.
34. A perusal of the impugned order and in particular
paragraph-13 shows that the Tribunal referred to the decision of
this Court in Sitaram Walunj (supra) and held that the provisions
of M.S.Os. apply to the departmental enquiry against the
employee of the Corporation i.e. the complainant. The
departmental enquiry was not conducted against the complainant
under the provisions of the M.S.Os. The Tribunal held that the
enquiry conducted by the Corporation against the complainant is
26 / 36
WP.681-02GR.doc
vitiated. The penalty, therefore, was illegal and bad in law and as
such is liable to be set aside. The Tribunal further held that the
Corporation violated the principles of natural justice by not
sending notice of appeal on the complainant. I do not find fault
with the order passed by the Tribunal. Hence the petition fails
and the same is dismissed. Rule is discharged with no order as
to costs.
35. W.P. No.8434/2014 challenges the judgment and order
dated 28.7.2010 passed by learned Presiding Officer, 7 th Labour
Court, Mumbai (for short, 'Labour Court') in Complaint (U.L.P.)
No.378/2006. By that order, the Labour Court allowed the
complaint filed by the respondent under Section 28 read with
Items 1 (b), (d), (e) (f) and (g) of Schedule IV of the Act challenging
the termination order dated 15.1.2003. The Labour Court allowed
the complaint and declared that the petitioners have engaged and
are engaging in unfair labour practices under Items 1(b), (d),(g) of
Schedule IV of the Act and directed them to cease and desist from
engaging into unfair labour practices. The petitioners are directed
to reinstate the complainant with continuity of service and 25%
backwages w.e.f. 15.6.2003. The Corporation has also
27 / 36
WP.681-02GR.doc
challenged the judgment and order dated 19.10.2012 passed by
the Tribunal in Revision [U.L.P.] No.189/2010. By that order, the
Tribunal allowed Revision Application and modified the Labour
Court's order. The Tribunal confirmed that order to the extent of
"it is declared that the respondents are engaged and engaging in
unfair labour practice under Item 1(b), (d) and (g) of Schedule IV
of the Act, 1971" and "the respondents are directed to reinstate
the complainant with continuity of service". The Tribunal
however quashed and set aside the direction to the respondents
to pay 25% of the back-wages w.e.f. 15.1.2003. The Tribunal
further directed the respondents to pay to the original
complainant 50% of back-wages w.e.f. 15.1.2003 till the date of
order dated 28.7.2010 or till the date of her reinstatement
whichever is earlier respectively.
36. A perusal of order dated 28.7.2010 and in particular
paragraph-25 shows that the misconduct alleged was not
established by the Corporation. In paragraph-26, the Labour
Court held that M.S.Os will prevail over the Municipal Service
Rules. The alleged misconduct of the complainant is not
established under M.S.Os. A perusal of the order passed by the
28 / 36
WP.681-02GR.doc
Tribunal and in particular paragraphs-25, 27 and 31 shows that
the Tribunal referred to the findings recorded by the Labour
Court as regards overriding effect of M.S.Os over Municipal
Service Rules and Regulations. Hence, no case is made out for
interfering with the impugned order. Petition fails and the same is
dismissed. Rule is discharged with no order as to costs.
37. W.P. No.8063/2005 filed by Jaysing D. Tamboli
challenges the judgment and order dated 17.8.2014 made by the
Labour Court. By that order, the Labour Court partly allowed
the Reference and directed the Corporation to appoint the second
party as fresh candidate/ recruitee. The workman is aggrieved as
he not given full backwages and continuity of service from
16.7.1998 and he is ordered to be appointed as a fresh
candidate/recruitee.
38. A perusal of the impugned order and in particular
paragraph-8 shows that the Labour Court held that the workman
proved that his services were terminated in violation of principles
of natural justice as he was not issued charge-sheet and that
enquiry was not conducted as per M.S.Os. The Corporation failed
to prove the misconduct before the Court. There is no iota of
29 / 36
WP.681-02GR.doc
evidence to show that the workman has committed misconduct.
The Labour Court, however, declined to grant back-wages for a
period from 15.7.1991 to 25.2.1995. In my opinion once the
findings were recorded by the Labour Court about termination of
services without issuing any charge-sheet as also conducting
enquiry as per M.S.Os, the Labour Court ought to have awarded
back-wages for the period from 15.7.1991 to 25.2.1995. The
wages for this period were denied to the workman only on the
ground that the demand letter was sent by the workman to the
Corporation on 25.2.1995. In view thereof, said direction
deserves to be set aside thereby directing the Corporation to pay
the back-wages to the petitioner from 15.7.1991 to 25.2.1995. The
petition accordingly succeeds. Rule is made absolute in aforesaid
terms with no order as to costs.
39. W.P. No.11441/2014 filed by Ashok Prabhakar
Nachankar and Ramesh Jethalal Chauhan against the
Corporation challenges the orders dated 3.5.2012 and 31.7.2012
passed by the Tribunal in Complaint (U.L.P.) No.53/2009. By
order dated 3.5.2012, the Tribunal held that the enquiry
conducted against the petitioners was fair and proper and that
30 / 36
WP.681-02GR.doc
the findings are not perverse. By order dated 31.7.2012, the
Tribunal modified the punishment imposed by the Corporation of
stoppage of two increments with permanent effect to stoppage of
one increment with permanent effect. A perusal of the impugned
orders shows that the Labour Court did not consider that the
petitioners are governed by M.S.Os and enquiry is required to be
conducted as per M.S.Os. The enquiry is not conducted as per
the M.S.Os. M.S.Os also does not prescribe punishment of
stoppage of increment. In view thereof, the impugned orders
dated 3.5.2012 and 31.7.2012 passed by the Tribunal are set
aside. Rule is made absolute with no order as to costs.
40. W.P. No.7370/2008 instituted by Sunil Kashinath
Yadav against the Corporation and others challenges the
judgment and order dated 4.2.2008 passed by the Tribunal in
Revision Application (U.L.P.) No.260/2006. By that order, the
Tribunal allowed the Revision Application filed by the Corporation
and set aside the order dated 31.10.2006 passed by the Labour
Court in Complaint (U.L.P.) No.343/2002 and dismissed the
complaint. The Labour Court had allowed the complaint filed by
the petitioner under Section 28 read with Items 1(b), (c),(d), (f)
31 / 36
WP.681-02GR.doc
and (g) of Schedule IV of the Act and declared that the
respondents have engaged in unfair labour practices under Items
1(b), (c),(d), (f) and (g) of Schedule IV of the Act. The respondents
were directed to withdraw the order of termination dated
3.5.2002 and order of reinstatement with continuity of service
and full back-wages as also directed to pay wages for the period of
suspension as per Rules.
41. A perusal of the impugned order shows that the
Tribunal failed to consider that the petitioner is governed by
M.S.Os. and the Rules and Regulations of the Corporation are not
served under the S.O. Act. As per M.S.Os the period of probation
is of three months and thus at the time of terminating his
services, he was not a probationer. The Labour Court rightly
allowed the complaint. However, the Tribunal committed serious
error in interfering with the order of the Labour Court. Hence,
the impugned order passed by the Tribunal is set aside and the
order passed by the Labour Court dated 30.10.2006 is restored.
Rule is made absolute with no order as to costs.
42. At this stage, Mr. Pakale orally applies for continuation
of the ad-interim order granted by this Court. Mr.Devdas opposes
32 / 36
WP.681-02GR.doc
this on the ground that the request made by Mr. Pakale is
unreasonable.
43. In Writ Petition No.681 of 2002, while issuing Rule on
04.02.2002, ad-interim order in terms of prayer clause (c) was
granted and the same is continued till date. In view thereof,
notwithstanding dismissal of the Petition, ad-interim order dated
04.02.2002 shall remain in force for the period of three months
from today.
44. In Writ Petition No.8973/2005 the petitioners
(Corporation and others) were directed to withdraw the
punishment dated 12.6.2001 inflicting fine of Rs.1,000/- on
respondent No.2 and refund the same to her. Notwithstanding
dismissal of the Petition, on the oral application made by Mr.
Pakale, the order passed in this Petition shall remain stayed for a
period of three months from today.
45. In Writ Petition No.8434 of 2014, while issuing Rule on
19.09.2014, interim order in terms of prayer clause (b) was
granted. In view thereof, notwithstanding dismissal of the
Petition, the interim order dated 19.09.2014 shall remain in force
for the period of three months from today.
33 / 36
WP.681-02GR.doc
46. In Writ Petition No.5942 of 2006, while issuing Rule on
15.11.2006 execution of the impugned order was stayed. In view
thereof, notwithstanding dismissal of the Petition, the interim
order dated 15.11.2006 shall remain in force for the period of
three months from today.
47. In Writ Petition No.406/2015 the petitioners
(Corporation and others) directed them to treat the period of
suspension as a period spent on duty for all purposes and all
consequential benefits. Imposition of find of Rs.1000/- was also
set aside. In view thereof, notwithstanding dismissal of the
petition, on the oral application made by Mr. Pakale, the order
passed in this Petition shall remain stayed for a period of three
months from today.
48. In the order dated 07.03.2016 passed in Writ Petition
No.11863 of 2015, this Court directed the respondent not take any
coercive steps to implement the impugned order till 06.04.2016
and the said ad-interim order was continued. In view thereof,
notwithstanding dismissal of the Petition, the ad-interim order
dated 07.03.2016 shall remain in force for the period of three
months from today.
34 / 36
WP.681-02GR.doc
49. The order dated 31.07.2012 passed by the Tribunal was
challenged in Writ Petition No.11441 of 2014 by Ashok Prabhakar
Nachankar and Ramesh Jethalal Chauhan. The Tribunal
modified the punishment imposed by the Corporation of stoppage
of two increments with permanent effect to stoppage of one
increment with permanent effect. In view thereof, this order shall
remain stayed for a period of three months from today.
50. The judgment and order dated 17.08.2014 made by the
Labour Court was challenged in Writ Petition No.8063 of 2005 by
Jaysing D. Tamboli. By that order, the Labour Court allowed the
reference and directed the Corporation to appoint the second
party as fresh candidate / recruitee. The workman was aggrieved
as he was not given full backwages and continuity of service from
16.07.1998. At the request of Mr. Pakale, this order shall remain
stayed for a period of three months from today.
51. In Writ Petition No.7370 of 2008, order dated
04.02.2008 passed by the Tribunal in Revision Application
(U.L.P.) No.260 of 2006 was challenged. By that order, the
Tribunal allowed the Revision Application filed by the Corporation
and set aside the order dated 31.10.2006 passed by the Labour
35 / 36
WP.681-02GR.doc
Court in Complaint (U.L.P.) No.343 of 2002 and dismissed the
complaint. On the motion made by Mr. Pakale, this order shall
remain stayed for a period of three months from today.
52. Order accordingly.
(R. G. KETKAR, J.)
Deshmane (PS)
36 / 36
